Donald Trump has an uncanny ability to turn what for most people would be a disaster into a positive event. He has announced this week that he is about to be indicted. In the US system, an indictment is an official accusation that a defendant has committed a crime. Most people, and certainly most election candidates, would consider an indictment a disaster, probably prohibiting them from continuing to run for an elected office.
Not Trump.
How is an indictment issued? In the US, there is a federal legal system that applies throughout the country, but also each state has its legal system with its own constitution and structure of courts. In many states, including the state of New York, there is an elected official, the District Attorney, who is responsible for court cases within each county. The District Attorney in the county of Manhattan, Alvin Bragg, is a Democrat who was elected in November 2021. His job is to investigate a potential crime and if there is sufficient evidence that a crime has been committed, to call for a Grand Jury, an independent panel of 16-23 citizens that will review the DA’s evidence and decide if there is “probable cause” that the accused has committed a crime against New York State laws. In New York, if at least 12 out of the 23 grand jurors vote to indict, then the accused will be officially indicted, meaning they will be arrested and put to trial for the crime.
During the investigative phase of the grand jury, only the DA’s office serving as prosecutor has the right to present the charges and call witnesses, lawyers for the defendant are not present in the proceedings which are kept secret. Although the process is subject to a theoretically uncertain vote by a grand jury of citizens, the reality is that DA’s generally call for a grand jury when they are confident of a decision to indict the defendant. Immediately before the grand jury votes, when the DA is virtually certain of a vote to issue the indictment, the DA approaches the defendant’s lawyers to offer the right of the defendant to testify before the grand jury, indicating an indictment is about to be issued. Generally, defendants to not accept this offer, preferring to prepare a defense at the trial that follows any indictment.
Prosecutors from the Manhattan DA’s office have just taken this step, of offering Mr. Trump the opportunity to present his case to the grand jury and news media have stated that several institutions in New York were making preparations to handle possible problems if Trump were indicted, leading everyone to assume that an indictment is imminent. The crime in question relates to the payment of $130,000 by Trump’s lawyer to the porn star Ms. Daniels during the run-up to the 2016 Presidential election, to keep her from revealing the affair she claimed to have had with Trump. The legalities of the case are complex, and certain commentators are not convinced that Trump can be convicted of a crime, which could in the worse case lead to a maximum sentence of four years in prison.
If DA Bragg proceeds with the indictment, it will be the first-ever criminal prosecution of a former president. Trump pre-empted any announcement by the DA by announcing he was going to be arrested and asking his supporters to launch massive protests against his indictment. “I think this is one of those classic Trump moments: He’s about to get in trouble, but if he sets fire to everything before he gets in trouble, then he thinks he won’t get in trouble.”[1] He usually succeeds in presenting himself as the victim, generating more support from his faithful followers. Trump has survived two impeachment trials and multiple investigations, it is not clear that an indictment will lead to his political downfall. Will he turn possible misfortune into a political gain, as he has so often in the past?
As of this writing, we do not know for sure if the Manhattan DA will proceed with the indictment. He is under considerable pressure to not treat differently than other potential criminals, but of course he cannot avoid the political consequences of his actions. Trump’s announcement obviously seeks to pressure him not to go through with the indictment. On the other hand, if Bragg intends to indict Trump, he must do so quickly, as the trial will be almost impossible to conduct fairly if it is in the middle of the Presidential primaries in 2024 (if a trial goes forward, Trump’s lawyers will certainly try to delay it as much of possible for that very reason).
Just as he benefited from his supporters’ outrage at the FBI’s raid of Mar-a-Lago to raise millions of dollars in August 2022, it is likely that Trump will take advantage of any indictment to galvanize his supporters to contribute to another major fund-raising campaign; he has already succeeded by his announcement in having all the media talk about the indictment, fully occupying the media space. In addition, the Trump announcement puts real pressure on his rivals to join him in protesting against the unfairness of the US legal system, limiting their willingness to attack him at a time when he has portrayed himself as an unfairly persecuted victim. This tactic is working, potential rival ex-Vice-President Pence has already spoken out against a possible indictment, and even arch-rival Ron DeSantis has criticized the Manhattan DA’s actions as “politically motivated”.
What are the political consequences of an indictment? My own reading is that this event is going to be positive for Trump in the short term, but negative in the longer term. Over the next year and a half, the Republican Party will select its 2024 Presidential candidate. Trump is currently the front-runner, continuing to have a firm hold on the Republican base, but his position has clearly weakened with the growing concern of many Republicans that he is unlikely to win the Presidential election. An indictment feeds into this fear. If, as I continue to predict, Trump is selected as the Republican Party candidate for the 2024 election, he must broaden his support beyond his Republican base and there, an indictment and a subsequent trial, particularly if it goes poorly for Trump and he reacts in his usual impetuous manner, could well turn more persons against him.
[1] From a SLATE interview of Dahlia Lithwick by Mary Harris, “‘The Zombie Case’: How Stormy Daniels’ Alleged Hush Money May Lead to a trump Indictment”, March 20, 2023 De uma entrevista SLATE de Dahlia Lithwick por Mary Harris, “‘The Zombie Case’: How Stormy Daniels’ Alleged Hush Money May Lead to a trump Indictment”, 20 de março de 2023
